NJ News & Views Complaint Charges Lakewood Clerk withheld Tax Collection Records

February 18th, 2017
NJ News & Views Complaint Charges Lakewood Clerk withheld Tax Collection Records

[Editor's Note: At 12:44 p.m. on February 20, 2017, this story was edited for style, content and accuracy.]

Knowledge is power.

Those in a position of power do not always want to share what they know.

It is in the public interest that they do.

An informed public is an empowered electorate.

What voters do not know, the media is empowered to tell them.

On December 21, 2016, a reporter for NJ News & Views attempted to fulfill its' Constitutional responsibility to do just that.

The result will be a judicial showdown refereed by the state's Government Records Council (GRC), a quasi-judicial panel that adjudicates complaints heard under the New Jersey Open Public Records Act (OPRA).

After more than a decade of struggling to obtain information from township officials just as determined to withhold it, this editor/reporter filed a complaint, dated January 5, 2017, against current Lakewood Township Clerk Kathryn Hutchinson, the designated records custodian.

The complaint has been a long time coming, based on numerous requests by this editor/reporter that Hutchinson and her staff comply with state law.

According to documents filed with the GRC on January 6, 2017, this editor/reporter told state officials that at 1:19 p.m. on December 21, 2016, she filed an OPRA request for property tax payment records for Block 778.05, Lot 27.

The location is a residential home located at 157 Spruce Street in Lakewood.

At the December 20, 2016 meeting of the Lakewood Planning Board, members approved an application by Yosef Tress for a change of use/site plan exemption to turn the tax ratable into a tax-exempt house of worship.

According to the Ocean County Tax Board online records, the 2016 tax assessment for 157 Spruce Street was $7,316.21.

The county tax assessment records do not report tax payment records.

Until this editor/reporter filed a complaint with the state, neither did the Township of Lakewood under state law, according to the complaint filed with the GRC.

Upon filing an electronic OPRA request at the e-mail address of the township clerk's office; the e-mail address of the township's designated records custodian, Lakewood Township Clerk Kathryn Hutchinson; and the e-mail address of Florence Ochs, a member of Hutchinson's staff that handles OPRA requests, this editor/reporter received a delivery failure notification e-mail.

This editor/reporter responded to the delivery failure notification by forwarding the same electronic OPRA request to the same officials at the same township e-mail addresses, but also copied the request to Mayor Menashe Miller at CHEMED.

According to his 2016 N.J. Financial Disclosure Statement, available for inspection on the state Department of Community Affairs (DCA) Web site, Miller receives a salary in excess of $2,000 for each of the following employers:

• Lakewood Township Committee at 231 Third Street, Lakewood NJ 08701;
• New Jersey State Legislature at 125 West State Street, Trenton NJ 08625;
• United States Air Force Reserve at joint base McGuire-Dix-Lakehurst, NJ; and
• The Center for Health Education Medicine & Dentistry (CHEMED) at 1771 Madison Avenue, Lakewood NJ.

This editor/reporter charged in her OPRA complaint that instead of responding to a request for documentation that his designated records custodian reportedly did not receive, the 2016 mayor of Lakewood chastised the requestor by berating her in a January 3, 2017 e-mail.

"I take great offense by your email and I NEVER told you to EVER contact me at CHEMED," Miller said in the e-mail. "As a matter of fact please don't ever contact me via Chemed for township business. From here on in I will not be responding to any township related email from you not sent to my official township email address."

This editor/reporter responded to Miller's scolding by reminding him that the township responded to her initial OPRA request, sent to township e-mail addresses, with a delivery failure notification.

"I received a delivery failure message the first time I sent the request, but not the second time, when I copied you at an email address…at Chemed - not the township," this editor/reporter told Miller. "I discussed the delivery failure message with the township clerk after the December 22, 2016 committee meeting adjourned, and she confirmed she received the OPRA request the second time I sent it. In fact, she was annoyed I had copied you on it the second time."

This editor/reporter also told Miller that instead of debating whether or not the township clerk received the OPRA request, she respond to it as expeditiously as possible.

According to the OPRA complaint, that did not happen.

"Despite confirming receipt of my OPRA request, and although I did not receive a delivery failure notification following my resubmission of it the same day, the designated records custodian has not responded to my request in writing by either giving me the requested documents to inspect, or (by) denying access to them - even though I gave her an additional day to comply with state law."

On Friday, January 6, 2017, several hours after this editor/reporter faxed the OPRA complaint to the GRC before the start of business that day, township officials e-mailed the requested tax records to her.

This editor/reporter responded in a hand-written fax cover sheet sent to the GRC.

"Attached please find correspondence between the designated records custodian for the Municipality of Lakewood and myself, relevant to my complaint," this editor/reporter told the GRC. "(After faxing my complaint to the GRC and copying it by fax to township officials,) Lakewood finally responded to my December 21, 2016 OPRA request - not because they had a valid reason (for the delay), but because I filed a complaint with the GRC."

This editor/reporter told the GRC that she did not consider the township clerk's delay in responding to the request to be lawful under the seven business days permitted for response, which township officials had exceeded without a request for additional time.

In one of the attached printouts of electronic communications this editor/reporter exchanged with Hutchinson and Ochs, she responded to receipt of the requested documentation upon filing a complaint with the GRC.

"I'm not withdrawing my complaint just because the township finally complied with state law," this editor/reporter said. "I should not have to file a complaint with the GRC in order to have the records custodian comply with state law. That is why I am not seeking mediation in this matter. I just do not believe it won't happen again."

The tax records this editor/reporter requested under OPRA are not just documentation of lost tax revenue that other taxpayers will have to make up in higher tax assessments. Those records document a diminished quality of life as well, according to public comments at planning board meetings NJ News & Views attended late last year.

Public policy is to blame.

Because Lakewood permits schools and houses of worship to open in most areas of town as a conforming use, an increasing number of residents have told members of the Lakewood Township Committee, the Lakewood Planning Board and the Lakewood Zoning Board of Adjustment that the market value of their homes is decreasing through accessory uses of such properties, as well as increased traffic in their neighborhoods.

In the township's response to this editor/reporter's complaint, former Lakewood Mayor Marta Harrison, now employed as the municipal Information Technology Administrator, indicated in her sworn statement that the delivery failure notification was a spam filter issue that affected incoming electronic mail the entire week.

She did not explain why this editor/reporter did not receive a delivery failure notification after forwarding the OPRA request to the same township e-mail addresses the second time that same day if the problem reportedly persisted the entire week.

In the forwarded e-mail request, this editor/reporter told Hutchinson that, if necessary, she would personally hand her a printout of the request at the following evening's committee meeting if the township continued to block her electronic requests as spam, which Lakewood district officials had done for years.

Both Harrison's deposition and Hutchinson's response were not only delivered electronically, they also were faxed and sent to this editor/reporter's home by FedEx.

Taxpayers may never know at what cost.

The response was prepared by Lakewood Township Attorney Steven Secare, who is contracted by the Lakewood Township Committee at a lump sum cost, instead of being required to submit itemized bills that account for all time and expenses incurred in the performance of his work.

In the response, Secare identified himself as Head of the township's Law Department.

He is not.

For years, Lakewood Township had an in-house law department. In 1998, the Republican majority on the township committee instead appointed a township attorney to replace in-house counsel.

The township's first contracted attorney was Salvatore Alfieri.

In 1999, a new Democratic majority on the township committee appointed Steven Secare and his law firm to serve as township attorney.

For the next decade, until Republicans wrested control of the local governing body from Democrats in November 2008, Secare and his associates served as the township attorney.

In 2009, the new Republican majority appointed Bathgate Wegener & Wolf as the new township attorney, represented by Jan Wouters.

In 2015, Republicans voted to bring back Secare and his new law firm as township attorney.

In 2017, the Republican majority voted to appoint Committeeman Raymond Coles, a Democrat, as mayor.

According to documents NJ News & Views requested under OPRA since Secare's return in 2015, Secare & Hensel contracted with committeemen to bill Lakewood at the lump sum rate of $25,000/month, payable quarterly in advance, for a total of $300,000/year.

By 2016, committeemen increased the amount of their contract with Secare & Hensel to a total of $420,000.

According to documents NJ News & Views received under OPRA last year, Secare submitted some itemized bills, but did not itemize all his bills.

Under Secare & Hensel's current 2017 contract, the law firm is to receive a total of $456,000/year.

Instead of some itemized bills, this time NJ News & Views received purchase orders addressed to the township's law department, which Secare claimed to head in the response he prepared to this editor/reporter's OPRA complaint, c/o the township manager.

Because Secare does not itemize his bills as returning township attorney, taxpayers that pay for his services do not know if they are overpaying or underpaying the cost.

The cost of their ignorance is their hard-earned tax dollars.

At the February 15, 2017 meeting of the Lakewood Township Committee, members voted on second reading to approve an ordinance creating a Department of Human Resources and the hire of a director to oversee it.

Committeemen may already have decided who they will appoint to fill the position.

According to public comments, one of the job applicants is a relative of an incumbent committeemen, who abstained from voting, instead of recusing himself by leaving the dais during the committee vote to adopt the ordinance on second reading.

New Jersey State statute does not prohibit nepotism.

That does not mean that the local governing body cannot enact legislation prohibiting nepotism within municipal government.

A relative of an incumbent committeeman is not the only person to profit by the committee's action.

As municipal manager of Lakewood, Thomas P. Henshaw is contractually responsible for personnel matters that someone else will now administer at almost twice the expense.

In a contract signed on October 28, 2015 by Henshaw; Mayor Aisik (Isaac/Albert) Akerman; and Hutchinson, under her maiden name of Cirulli, Henshaw agreed to the following:

"The Manager agrees to provide full, faithful and proper performance of the duties of said position, to the best of his ability and available resources, and agrees to devote however many or few hours in a week as are necessary to fully and completely execute the Manager's duties and responsibilities. The Manager is on call 24 hours a day, seven (7) days a week to deal with any emergency as may require his direct involvement. These duties and responsibilities shall include all of those items specifically delineated in the Statute and in the TOWNSHIP's Ordinances and Resolutions, as well as all such other assignments given by TOWNSHIP Council to the Manager, said assignments to be consistent with the duties customarily performed by a Township Manager."

In addition to being available whenever needed, Henshaw agreed in his contract to oversee personnel.

"As CEO of the Municipality, the Manager is responsible for all aspects of Township Business and all the Employees who work for the Township, including creating and monitoring over a 76 million dollar budget. Because of these factors, adding education and experience to the Manager's position HENSHAW will be paid at a starting salary that mirrors all those traits."

On February 15, 2017, NJ News & Views asked committeemen if Henshaw would be taking a reduced salary once someone else was performing some of his duties.

Mayor Raymond Coles indicated that Henshaw performed duties that were above and beyond those the manager was required to do. Coles said Henshaw was available 24 hours a day, seven days a week - which were the terms of his contract.

In writing his contract, Henshaw ensured he would be compensated for his work at a rate in excess of any other township administrator.

"(His) new starting salary is: $195,000.00, for 2015, retroactive to September 1, 2015. In addition, any/all yearly raises will not be less than what the 4 tenured positions; CFO, CLERK, Tax Assessor, and the Tax Collector receive with a minimum guaranteed 2% yearly raise starting the first of each year."

Henshaw may have even less to do than when he initially contracted with committeemen to perform the duties of municipal manager.

According to all union contracts NJ News & Views requested under OPRA, Henshaw successfully negotiated new ones, all of which will be in effect until 2018. Even if those contracts expire before Henshaw negotiates new ones, township employees will continue to work under the terms of those contracts.

Henshaw can thank a new, inexperienced personnel director learning on the job to perform his contractual responsibilities, while he collects a salary that has greatly increased in 2017 under the terms of his 2015 contract.

So can Secare, who is not only the township attorney, but also Lakewood's municipal labor attorney.

Taxpayers need not seek public information from Henshaw's documents to determine if they are receiving their money's worth from his services, anymore than they need look for it from Secare's billings as township attorney.

Since his appointment, Henshaw has redacted all topics for closed session discussion from the township committee's workshop/executive session agendas.

The township clerk does not electronically record executive sessions.

What the public sees is what government officials choose to report to them.

Members of the public, as well as the media, do not have to stand for business as usual.

In a January 6, 2017 e-mail to Hutchinson, sent at 2:52 p.m., this editor/reporter underlined the importance of communicating with the public that government officials serve.

"All you had to do to comply with state law was to communicate with me in writing and ask for additional time if you needed it," this editor/reporter told the designated municipal records custodian. "Instead, you ignored me and my request. No matter what decision the GRC reaches in adjudicating my complaint, I intend to hold you accountable for your actions by filing it."